Export Controls: Controlled Technology and Technical Data

Guideline Summary

The Export Administration Regulations (“EAR”) (15 CFR Parts 770-774) and the International Traffic in Arms Regulations (“ITAR”) (22 CFR Parts 120-130) require U.S. persons to seek and receive authorization from the U.S. Government before releasing to foreign persons (nationals) in the U.S. controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the U.S.--even by an employer--is deemed to be an export to that person's country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. Government before it releases controlled technology or technical data to its nonimmigrant workers.

University Administrative Authority for Export Control Compliance

The Division of Research and Economic Development (DORED) is the administrative authority for export control compliance for NC A&T State University. DORED works in conjunction with other administrative offices regarding export control matters and the administration of the University’s export control plan.

Requirement to Certify Compliance with U.S. Export Control Regulations

The U.S. Government requires each company or other entity to certify that it has reviewed the EAR and ITAR and determined whether it will require a U.S. Government export license to release controlled technology or technical data to foreign persons. If an export license is required, then the company or other entity must further certify that it will not release or otherwise provide access to controlled technology or technical data to the beneficiary until it has received from the U.S. Government the required authorization to do so.

Controlled Technology and Technical Data

The technology and technical data that are controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) and the ITAR's U.S. Munitions List (USML). The CCL is found at 15 CFF Part 774, Supp. 1.See http://www.access.gpo.gov/bis/ear/ear_data.html#cci. The USML is at 22 CFR 121.1. See http://www.pmddtc.state.gov/regulations_laws/itar.html. The EAR-controlled technology on the CCL generally pertains to that which is for the production, development, or use of what are generally known as "dual-use" items. The ITAR-controlled technical data on the USML generally pertains to that which is directly related to defense articles. Information about the EAR and how to apply for a license are at www.bis.doc.gov. Specific information about EAR's requirements pertaining to the release of controlled technology to foreign persons is at www.bis.doc.gov/deemedexports. Information about the ITAR and how to apply for a license are at www.pmddtc.state.gov. Specific information about the ITAR's requirements pertaining to the release of controlled technical data is at http://www.pmddtc.state.gov/faqs/license_foreignpersons.html .

When exporting commodities from the U.S., or releasing technology or source code to a foreign national in the U.S., under U.S. law it is the responsibility of the “exporter” to classify the items to determine if export licenses are required from any U.S. government agency. The “exporter” must clear all export commodities and/or technology release with the DORED Research Compliance Office to ensure proper protocol is completed and authorized for export.

A. University Confidential Data. University employees and students traveling aboard must ensure that they do not travel with documents or computing devices (including laptop computers, BlackBerrys/Smart phones, PDAs, and removable memory devices/thumb drives) that contain confidential University data, such as student or employee Social Security numbers, credit card numbers or other financial information, protected health information, or student education records protected by FERPA.

B. Who Is Subject to Export Control Clearance? All foreign national visitors (e.g. invited visitors, scholars, and/or employees) are subject to the Export Control clearance process for NC A&T State University relevant to the controlled technology and technical data guidelines for University sponsored research projects. This process should be cleared prior to an established arrival date of the visitor, to include initiating a J-1 Exchange Visitors request through the International Students and Scholars Office or providing a formal invite letter for visitor entry to the U.S.

C.University Policy and Procedural Resources. There are numerous University policies that manage various aspects of international travel (i.e. international travel and international visitors, student and foreign national employment, division of research and economic, academic affairs, business and finance, and all other applicable University policies as warranted). To review these policies visit the applicable divisions and/ or departments website at www.ncat.edu or contact the administrative office that governs the policy or procedure.

D. Subject to Export Control after Initial Clearance. If a foreign national is hired in a position or sponsored to work on a project that does not currently require licensing, if the employee or visitor assumes additional duties or is assigned to a new project, a new Export Control Form must be resubmitted listing the new duties or assignment prior to any change occurring. If a license is then required, and if the initial clearance was in regards to an H-1B petition, the University must file an amended petition with USCIS before s/he begins the work subject to licensing.

Who Is Subject to Export Control Clearance?

All foreign national visitors (e.g. invited visitors, scholars, and/or employees) are subject to the Export Control clearance process for NC A&T State University relevant to the controlled technology and technical data guidelines for University sponsored research projects. This process should be cleared prior to an established arrival date of the visitor, to include initiating a J-1 Exchange Visitors request through the International Students and Scholars Office or providing a formal invite letter for visitor entry to the U.S. If the visitor will be employed with the University, this process should be completed in conjunction with the criminal conviction check proceedings to ensure eligibility of hire prior to the offer and acceptance of employment.

What is the Business Process for Visitor Clearance?

Sponsoring and/or employing University departments must complete the Export Control Form and submit to the Division of Human Resources (DHR) for each foreign national visitor. DHR will assess and determine if further clearance efforts are required through DORED. If so, DHR will work collaboratively with DORED for a final decision.